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TMI Blog2020 (1) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... ached plaintiff No.1 and induced him to take a loan of Rs. 3 crores from defendant No.1 i.e. Tata Capital Housing Finance Ltd. The plaintiff agreed to the request of the said defendants. 4. It is pleaded that for the purpose of getting the loan sanctioned, defendants No. 2 and 3 brought a bunch of loan papers to the office of plaintiff No.1 and got them signed from the plaintiffs. Defendants No. 2 and 3 also took the original title papers of the property situated at Engineers Enclave, Pitampura, Delhi for keeping them with the Bank as a collateral security. It is stated that defendants No. 2 and 3 thereafter informed the plaintiffs that the loan has been sanctioned and asked them to start paying monthly instalments to defendant No.1. It is an admitted fact that the plaintiffs have paid monthly instalments from April 2016 till September 2016. It is however pleaded that no loan was released by defendant No. 1 to the plaintiffs. 5. It is stated that subsequently, on enquiry from the Bank Manager of defendant No. 1, the plaintiffs were shocked to know that defendant No. 1 Bank had credited the loan amount of Rs. 3 crores into the account of defendants No. 5 and 6. It is stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi before filing of the present suit. Hence, it is pleaded that the suit is liable to be rejected on account of the bar contained in the SARFAESI Act. 9. It is further pointed out that in terms of the loan agreement, the loan amount was disbursed on 25.02.2016 to defendant No. 5 & 6 after receiving Home Equity Sanction letter dated 19.02.2016 from plaintiff No. 1. Plaintiff No. 1 has paid initial instalments from April 2016 to September 2016 and have said to have stopped paying instalments since October 2016. Hence, a demand notice was sent on 09.03.2018 which was served upon the plaintiffs calling upon the plaintiffs to pay a sum of Rs. 3,06,93,616/-(Rupees Three Crores Six Lakhs Ninety Three Thousand Six Hundred Sixteen only). Defendant No. 1 is also said to have taken symbolic possession of the mortgaged property under Section 13(4) of the SARFAESI Act by notice dated 13.06.2018. 10. In the reply filed by the plaintiffs to the present application, reliance is placed on the judgment of the Supreme Court in the case of Mardia Chemicals Ltd. v. Union of India 2004(4) SCC 311 to plead that an exception has been carved out and that the jurisdiction of the civil court can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he borrower which is relatable to the security for the debt. (c) appoint any person (hereafter referred to as the manager), to manage the secured assets the possession of which has been taken over by the secured creditor; (d) require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt. xxxxxxx 17. Application against measures to recover secured debts- (1) Any person (including borrower) aggrieved by any of the measures referred to in sub-section (4) of Section 13 taken by the secured creditor or his authorised officer under this chapter, may make an application along with such fee, as may be prescribed] to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken: Provided that different fees may be prescribed for making the application by the borrower and the person other than the borrower. Explanation.-For the removal of doubts, it is hereby declared that the communication of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easures specified under sub-section (4) of Section 13 to recover his secured debt. (4-A) Where- (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,- (a) has expired or stood determined; or (b) is contrary to Section 65-A of the Transfer of Property Act, 1882 (4 of1882); or (c) is contrary to terms of mortgage; or (d) (d) is created after the issuance of notice of default and demand by the Bank under sub-section (2) of Section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub- clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Registrar, Delhi in respect of a loan granted by the Union Bank of India to S.K.Trading Company of which Krishan Gopal Sharma was alleged to be the proprietor thereof. The registration particulars as per sale deed dated 05.01.1979 of the suit properties were the same as of the sale deed dated 05.02.1966 wherein one Jai Narain Seth conveyed his half share in the suit plot to the co-owner Sh.Sharan Jeet Singh. The plaintiffs were the successors of the title flowing from Sh.Sharan Jeet Singh. In those facts, the Division Bench held as follows: "25. By the time the mortgage was created on 21.12.1989, possession of the plot was with Rajesh Khurana and issue would arise pertaining to his possessory rights being a deemed notice of his interest in the property to the bank when the mortgage was created on 21.12.1989 by Krishan Gopal Sharma. ** ** ** 27. A serious issue, pertaining to a serious fraud arises on the facts stated herein-above and we dwell no further lest we prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant/plaintiff to title to the mortgaged property adversely to the title professing which the mortgagor had created the mortgage. Such a claim, in my view would not qualify within the exception carved out by the Supreme Court and would be within the jurisdiction of the DRT under Section 17 of the SARFAESI Act and hence the jurisdiction of the civil court would be barred with respect thereto. It has been held by the Division Bench of this Court in Onil Sadh v. Federal Bank Ltd. MANU/DE/3449/2015 (2015) 224 DLT 556 that the claim to the mortgaged property adversely to the mortgagor or the mortgagee can be made only before the DRT under Section 17 and not before the civil court. The exception carved out by the Supreme Court in Mardia Chemicals (supra) is available in my humble opinion only when the bank or financial institution is perpetuating a fraud in the enforcement of the mortgage like as before the Madras High Court i.e. of exercising the rights as mortgagee contrary to the terms of the mortgage. 23. In this respect, the claim of the appellant/plaintiff herein is similar to that of the plaintiff in Jagdish Singh supra. The claim of the appellant/plaintiff therein al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to disburse the loan amount to defendant No.6/defendant No. 5 to 6. It is pleaded that this is a created document in as much as the loan is said to have been sanctioned on 19.02.2016 and is said to have been disbursed in the account of defendants No. 5 and 6 on 24.02.2016. 23. Do the facts as stated in the plaint lead to a conclusion that an egregious fraud has been committed by the secured creditor to warrant a conclusion that this court would have the jurisdiction to try the present suit. Some of the relevant facts, at the cost of repetition are that the plaintiff admits to having applied for a loan. It is admitted that the plaintiffs gave the title papers as a security for the loan. The plaintiff also admits having paid six instalments for repayment of the loan totalling a sum of Rs. 21,02,742/-. It is pleaded that this repayment of loan was done in good faith believing that the disbursal of the loan would follow soon. The essential dispute centres around as to whether the plaintiff executed the communication dated 22.6.2016 whereby they have allegedly agreed to disbursal of the loan in favour of defendant No.6. The plaintiff denies execution of any such document or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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